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President Obama Evolves on Gay Marriage, Again

By Juliet Lapidos October 20, 2014 3:23 pmOctober 20, 2014 3:23 pm

When President Obama finished “evolving” and announced, in May 2012, that he thought “same-sex couples should be able to get married,” he went farther than any previous president though not quite so far as many activists would have liked. In his interview with Robin Roberts, he said he thought the issue would, and should be, “worked out at the local level,” thus implicitly denying that marriage was a constitutionally protected right.

“Ultimately, I think the Equal Protection Clause does guarantee same-sex marriage in all fifty states,” the president told Mr. Toobin.
The Obama administration has not yet made this argument before the Supreme Court. If a circuit court rules against marriage equality and the Supreme Court decides to take up this issue, it will have the opportunity to do so.

Despite the president’s 14th amendment argument, his conversation with Mr. Toobin may annoy some in the community fighting for marriage equality. Over the last several years there has been a split between those who want the Supreme Court to move slowly on addressing the constitutional question — to avoid a repeat of the Roe v. Wade decision, which arguably made abortion rights more controversial — and those who think that no delay could possibly be justified.

Mr. Obama is an incrementalist. “As you know,” he told Mr. Toobin, “courts have always been strategic. There have been times where the stars were aligned and the Court, like a thunderbolt, issues a ruling like Brown v. Board of Education, but that’s pretty rare. And, given the direction of society, for the Court to have allowed the process to play out the way it has may make the shift less controversial and more lasting.”